Embryo Custody Mediation

What will a mother in Missouri, a parent in California, and a mediator in San Francisco do with the case of embryonic mediation? A news story out of the San Francisco Chronicle reported on the story of a couple in California that contractually gave embryos to a midwestern couple for adoption/donation. Here is the story:

The Pleasanton family and suburban St. Louis family who have been battling for control of two frozen embryos have agreed to suspend their lawsuits against each other in favor of mediation.

Both sides are expected to meet with a private mediator in three weeks in California.

“The hope is they can sit down and talk like adults and come up with a solution to the problem,” said Kathryn Jamboretz, the spokeswoman for Patrick and Jennifer McLaughlin of Kirkwood, Mo.

“Neither of these families is really wealthy,” she continued. “The idea is to not run up huge legal bills and to sit down at the table to talk face-to-face.”

The unusual legal dispute stems from four frozen embryos that were donated – or as both religious families consider it, put up for adoption – by Edward and Kerry Lambert of Pleasanton. The embryos were left over from an in-vitro fertilization procedure that produced their son in 2007.

Kerry Lambert and Jennifer McLaughlin connected via a Web site designed to facilitate embryo donation rather than have them discarded or donated to science.

The couples signed a contract in February 2009 granting custody to the McLaughlins. It included an unusual clause that if the embryos weren’t used within a year, the Lamberts could revoke the agreement.

The McLaughlins, already parents to five children through adoption, had twin daughters using two of the embryos on Jan. 8. Jennifer McLaughlin said she delayed deciding what to do with the other two embryos until she saw how raising seven children would go.

She has since decided she wants to give birth to the last two, but in the meantime heard from the Lamberts that they wanted to give the two embryos to a different family. The Lamberts have declined to talk to the media, and it’s unclear why they decided to reclaim the embryos.

The embryos are being stored at a San Ramon fertility clinic until a decision is reached.

It seems — much like many legal disputes — the law seems to be clear and ambiguous at the same time. (based on the news story). More than a year has gone by. It is possible that the Missouri couple could argue that the contract is an all or nothing proposition — meaning that once they started to have two of the children the contract couldn’t be revoked. There are many laws that might apply. Missouri, California, or possible Federal interstate commerce.

But the more important question in my mind is what is going on in the clients’ heads. Does the religious issue have something to do with this new change in position? What are the reasons for Missouri family wanting 9 children?

Also, does the spokesperson’s comment about money guide us as to the real issues?

So, if this was the mediation brief and you were about to mediate the case, what would you do to prepare for this mediation?